State v. DoubleState v. Double
HENSAL, Judge.
{¶1} Austin Double appeals his convictions from the Medina County Court of Common Pleas. This Court reverses in part, and affirms in part.
I.
{¶2} Trooper Castillo with the Ohio State Highway Patrol pulled Mr. Double over for speeding on I-71 in Brunswick on March 8, 2019. She approached the passenger side of his Chevy Cavalier, and Mr. Double leaned over to roll down the passenger-side window. Trooper Castillo immediately smelled a strong odor of raw marijuana. After obtaining Mr. Double‘s license, registration, and proof of insurance, Trooper Castillo asked Mr. Double to
{¶3} Trooper Castillo then searched Mr. Double‘s vehicle for about twenty minutes. While doing so, she noticed a strong odor of marijuana coming from the center console. Using a pocketknife, she opened the compartment of the center console that contained “the wires to the gear shift and whatnot[.]” Trooper Castillo testified that this compartment was neither created nor installed by Mr. Double, and that she knew it opened because she previously owned a Chevy Cavalier, and that compartment to her Chevy Cavalier contained the power window control panel. She testified that, although she used a pocketknife to open that compartment, she did not need to exert a lot of force because it “popped right off.” During her cross-examination, Trooper Castillo acknowledged that she did not try to open the compartment with her fingers first before using her pocketknife.
{¶4} In the compartment, Trooper Castillo discovered a packet of tissue paper that contained wax, which she explained is a form of hashish, and a small container that contained more hashish. Trooper Castillo took these items to her patrol car and showed them to Mr. Double, who confirmed that it was about an ounce of hashish. Trooper Castillo released Mr. Double at the scene and submitted the substance for testing.
{¶5} Mr. Double was subsequently charged with one count of operating a vehicle with a hidden compartment used to transport a controlled substance in violation of
{¶6} At trial, Lauren Ditto, a criminalist with the Ohio State Highway Patrol Crime Lab, testified that she performed two presumptive tests and one confirmatory test on the brown, waxy substance, which weighed 16.7914 grams. Ms. Ditto testified that the results of that testing indicated that the substance was hashish, which is essentially concentrated marijuana resin. Ms. Ditto testified that she did not test the level of THC (the psychoactive cannabinoid found in marijuana) present in the substance because the law in effect at the time did not require her to do so and, according to her lab manual, a substance was considered hashish if it contained THC plus two additional cannabinoids. Here, she testified, the substance contained THC plus three additional cannabinoids, thus fitting the definition of hashish.
{¶7} Scott Goodin, a mechanical engineer who specializes in automotive design, testified on behalf of the defense. Mr. Goodin testified that he inspected Mr. Double‘s vehicle, and that it contained the original factory equipment without any modifications. Specific to the center console, he testified that he did not need any tools to open the compartment that Trooper Castillo searched, which contained the parking brake cables, shift linkage, and some wiring.
{¶8} The jury found Mr. Double guilty of both charges. He now appeals, raising five assignments of error for this Court‘s review. We will address his first assignment of error last.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT‘S FINDING OF GUILT OF OPERATING A VEHICLE WITH A HIDDEN COMPARTMENT USED TO TRANSPORT A CONTROLLED
SUBSTANCE ( R.C. 2923.241(C) (F)(4) ) IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶9} In his second assignment of еrror, Mr. Double argues that his conviction for operating a vehicle with a hidden compartment used to transport a controlled substance is against the manifest weight and sufficiency of the evidence. It is well-established, however, that “a review of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate and legally distinct determinations.” State v. Vicente-Colon, 9th Dist. Lorain No. 09CA009705, 2010-Ohio-6242, ¶ 18. Accordingly, “it is not appropriate to combine a sufficiency argument and a manifest weight argument within a single assignment of error.” State v. Mukha, 9th Dist. Wayne No. 18AP0019, 2018-Ohio-4918, ¶ 11; see
{¶10} Whether a conviction is supported by sufficient evidence is a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this review, our “function * * * is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id.
{¶11} On the other hand, when considering a challenge to the manifest weight of the evidence, this Court is rеquired to consider the entire record, “weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “A reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily against the conviction.” State v. Croghan, 9th Dist. Summit No. 29290, 2019-Ohio-3970, ¶ 26.
{¶12} In support of his assignment of errоr, Mr. Double asserts that his vehicle contained original factory equipment that had not been modified or altered in any way. He, therefore, argues that his vehicle did not contain a hidden compartment for purposes of
{¶13} Initially, we note that “[i]nterpretation of a statute is a question of law that we review de novo.” State v. Pountney, 152 Ohio St.3d 474, 2018-Ohio-22, ¶ 20.
{¶14} The testimony at trial indicated that Mr. Double‘s Chevy Cavalier contained original factory equipment with no modifications or additions. Trooper Castillo acknowledged this, testifying that she previously owned a Chevy Cavаlier, and that the compartment she found the substance in was neither created nor installed by Mr. Double. In denying Mr. Double‘s
{¶15} In Gomez, a detective found drug residue inside a spare tire located in the cargo section of a Kia. Gomez at ¶ 16. The spare tire was not original to the Kia; the original spare tire had been removed and replaced with one that was not compatible with the Kia. This spare tire had “purposeful” cuts in it allowing access to the tire‘s interior, which is where the detective located the drug residue. Id. at ¶ 16. At the bench trial, the parties stipulated that this spare tire had been “altered[.]” Id. In light of this evidence, the trial court found Mr. Gomez guilty of one count of fabrication of a vehicle with a hidden compartment in violation of
{¶16} The Fifth District affirmed Mr. Gomez‘s conviction on appeal. Id. at ¶ 106. In doing so, the Fifth District indicated that a spare tire - even one that is not compatible with the vehicle it is found in - is original factory equipment and a hidden compartment under the broad language of
{¶17} While this Court believes that Gomez was correctly decided based upon the facts of that case, to the extent that Gomez stands for the proposition that a vehicle‘s original factory equipment, without modification, can be a “[h]idden compartment” under
[w]hen interpreting a statute, a court‘s paramount concern is legislative intent. State ex rel. United States Steel Corp. v. Zaleski, 98 Ohio St.3d 395, 2003-Ohio-1630, ¶ 12. “[T]he intent of the law-makers is to be sought first of all in the languagе employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation.” Slingluff v. Weaver, 66 Ohio St. 621 (1902), paragraph two of the syllabus. However, “[i]n reviewing a statute, a court cannot pick out one sentence and disassociate it from the context, but must look to the four corners of the enactment to determine the intent of the enacting body.” State v. Wilson, 77 Ohio St.3d 334, 336 (1997)
“(1997). “A court must examine a statute in its entirety rather than focus on an isolated phrase to determine legislative intent.” Massillon City School Dist. Bd. of Edn. v. Massillon, 104 Ohio St.3d 518, 2004-Ohio-6775, ¶ 37. See also
R.C. 1.42 .
Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 10.
{¶18} Here, under the trial court‘s interpretation of
ASSIGNMENT OF ERROR III
THE TRIAL COURT‘S FINDING OF GUILT OF POSSESSION OF HASHISH (
R.C. 2925.11(A) (C) ) IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶19} In his third assignment of error, Mr. Double argues that his conviction for possession of hashish is against the manifest weight and sufficiency of the evidence. This Court applies the same manifest weight and suffiсiency standards set forth in our analysis of Mr. Double‘s second assignment of error.
{¶20}
to differentiate the appearance and identification of the sample. Mr. Double also asserts that Trooper Castillo could not identify the substance, and that she thought marijuana and hashish smelled the same. He, therefore, argues that, based on the totality of the circumstances, a reasonable trier of fact cоuld have concluded that the substance obtained from his vehicle was hashish.
{¶21} In support of his argument, Mr. Double directs this Court to State v. Hatton, 5th District Delaware No. 10CAA010012, 2010-Ohio-5419. There, the appellant challenged his conviction for possession of hashish on the basis that the State failed to present sufficient evidence to identify the substance as hashish. Id. at ¶ 12. The Fifth District rejected the appellant‘s argument, noting that the State‘s forensic chemist testified that he had experience distinguishing hashish from marijuana, and that he performed two chemical tests on the substanсe. Id. at ¶ 15. The Fifth District
{¶22} In response to Mr. Double‘s arguments, the State argues that Ms. Ditto was not required to test the level of THC present in the substance or examine the glandular hairs under a microscope, and that Hatton supports this. The State points to Ms. Ditto‘s testimony that the testing she performed was consistent with the standards within the scientific community at the time. The State also argues that Mr. Double‘s argument ignores the fact that Trooper Castillo testified that she observed a very strong odor of raw marijuana, and that - when she presented Mr. Double with the substance while he was in the back of her patrol car - he confirmed that the substance was hashish.
{¶23} As the State points out, Ms. Ditto testified that she did not test the level of THC present in the substance because the law in effect at the time did not require her to do so and, according to her lab manual, a substance was considered hashish if it contained THC plus two additional cannabinoids. She testified that the substancе found in Mr. Double‘s vehicle contained THC plus three additional cannabinoids, thus fitting the definition of hashish. She also testified that she has training in identifying controlled substances, that she has done so thousands of times, and that the substance found in Mr. Double‘s vehicle was brown and waxy with a pungent marijuana scent. Mr. Double did not present any competing testimony. To the extent that Mr. Double challenges Ms. Ditto‘s qualifications as an expert, he did not do so below, and has not argued plain error on appeal. See State v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio-6604, ¶ 9-10 (addressing the appellant‘s challenge to the qualifications of an expert, and declining to construct a plain-error argument on the appellant‘s behalf). Having reviewed the record, this Court determines that the State presented sufficient evidence for purposes of establishing that the substance at issue was hashish according to the law in effect at the time of Mr. Double‘s trial. We further determine that this is not the “exceptional case in which the evidence weighs heavily against the conviction.” Croghan, 2019-Ohio-3970, at ¶ 26. Accordingly, Mr. Double‘s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN DENYING APPELLANT, AUSTIN DOUBLE,
CRIM.R. 29 MOTION AS THE STATE FAILED TO MEET THE BURDEN OF PRODUCTION FOR THE CHARGE OF OPERATING A VEHICLE WITH A HIDDEN COMPARTMENT USED TO TRANSPORT A CONTROLLED SUBSTANCE AND POSSESSION OF HASHISH.
{¶24} In his fourth assignment of error, Mr. Double argues that the trial court erred when it denied his
ASSIGNMENT OF ERROR V
APPELLANT, AUSTIN DOUBLE, WAS DENIED HIS RIGHT TO DUE PROCESS AND OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION BECAUSE HIS TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.
{¶25} In his fifth assignment of error, Mr. Double argues that his trial counsel rendered ineffective assistance. To prevail on a claim of ineffective assistance of counsel, Mr. Double must establish (1) that his counsel‘s performance was deficient to the extent that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one that falls below an objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. A court, however, “must indulge a strong presumption that counsel‘s conduct falls within the wide range of reаsonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.‘” Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). To establish prejudice, Mr. Double must show that there existed a reasonable probability that, but for his counsel‘s errors, the outcome of the proceeding would have been different. State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶ 138.
{¶26} In support of his assignment of error, Mr. Double argues that his counsel rendered ineffective assistance because she did not: (1) file a motion to suppress challenging the traffic stop and the search of his vehicle; and (2) hire an expert to test the substance found in his vehicle. We will address each argument in turn.
{¶27} Mr. Double argues that his trial counsel rendered ineffective assistance by not filing a motion to suppress relative to the traffic stop and subsequent search, which could have challenged the stop itself, as well as his consent to the search. We disagree.
{¶28} “Failing to file a motion to suppress does not constitute ineffective assistancе of counsel per se.” State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, ¶ 65. As this Court has stated, “[c]ounsel‘s decision not to file a motion to suppress may be a matter of
{¶29} “It is well-established that a police officer who observes a traffic violation possesses reasonable suspicion to conduct an investigatory stop.” State v. Jackson, 9th Dist. Lorain No. 14CA010555, 2015-Ohio-2473, ¶ 15. This includes stopping a vehicle for speeding. See, e.g., State v. Hoder, 9th Dist. Wayne No. 03CA0042, 2004-Ohio-3083, ¶ 15. Further, “[t]he smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search.” State v. Moore, 90 Ohio St.3d 47 (2000), syllabus.
{¶30} Here, Trooper Castillo testified that she pulled Mr. Double over for speeding, and that she searched his vehicle because she smelled a very strong odor of raw marijuana coming from the inside of the vehicle. She testified that this was a probable-cause search, so she did not need to obtain Mr. Double‘s consent to search his vehicle. She also testified that she has training in identifying controlled substances. Having reviewed Mr. Double‘s assignment of error, we conclude that he has failed to dеmonstrate that there was a basis to suppress the evidence in question, and that there was a reasonable probability that the motion to suppress would have been granted. Mr. Double, therefore, has failed to establish that his trial counsel rendered ineffective assistance by not filing a motion to suppress relative to the traffic stop and subsequent vehicle search. We now turn to his argument regarding his counsel‘s failure to retain an expert.
{¶31} Mr. Double argues that his trial counsel rendered ineffective assistаnce because she did not retain an expert to confirm or dispute whether the substance found in his vehicle was hashish. As the Ohio Supreme Court has stated, “[t]he decision not to seek expert testimony is often tactical ‘because such an expert might uncover evidence that further inculpates the defendant.‘” State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 244, quoting State v. Krzywkowski, 8th Dist. Cuyahoga Nos. 83599, 83842, and 84056, 2004-Ohio-5966, ¶ 22. Additionally, it has recognized that “ineffective assistance does not occur when counsel decides to rely on cross-examination of the state‘s expert rather than calling a separate defense expert.” Thompson at ¶ 244.
{¶32} Here, Mr. Double‘s trial counsel thoroughly cross-examined Ms. Ditto regarding the chemical testing she performed on the substance found in Mr. Double‘s vehicle. His trial counsel questioned Ms. Ditto regarding the specifics of the testing, her failure to test for the presence of THC in the substance, as well as her failure to identify which part of the marijuana plant the substance she tested came from. His argument on appeal assumes that a defense expert would have сoncluded that the substance found in his vehicle was not hashish. This speculation, however, is insufficient to establish ineffective assistance. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, ¶ 119, quoting State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 217 (stating that mere speculation “is insufficient to establish ineffective assistance.“). We, therefore, reject Mr. Double‘s argument in this regard.
{¶33} In light of the foregoing, Mr. Double‘s fifth assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT AND ABUSED ITS DISCRETION IN CONVICTING AUSTIN DOUBLE OF OPERATING A MOTOR VEHICLE WITH A HIDDEN COMPARTMENT BECAUSE THE STATUTE IS UNCONSTITUTIONAL PER SE AND AS APPLIED TO AUSTIN DOUBLE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 AND 16, ARTICLE 1 OF THE OHIO CONSTITUTION.
{¶34} In his first assignment of error, Mr. Double argues that
III.
{¶35} We decline to address the merits of Mr. Double‘s first assignment of error. Mr. Double‘s second assignment of error is sustained. Mr. Double‘s third and fifth assignments of error are overruled. Mr. Double‘s fourth assignment of error is overruled in part, and sustained in part. The judgment of the Medina County Court of Common Pleas is affirmed in part, reversed in part, and the cause is remanded.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
JENNIFER HENSAL
FOR THE COURT
CALLAHAN, P. J. CARR, J. CONCUR.
APPEARANCES:
JOCELYN STEFANCIN and KIMBERLY STOUT-SHERRER, Attorneys at Law, for Appellant.
S. FORREST THOMPSON, Prosecuring Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.